Brasher v. Carr

• Decision Date: 12 November 1987
• Docket Number: No. C14-86-753-CV,C14-86-753-CV
• Citation: 743 S.W.2d 674
• Parties: Lynn BRASHER, Appellant, v. Walter CARR & Al Thiel, Appellees. Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 674

743 S.W.2d 674

Lynn BRASHER, Appellant, v. Walter CARR & Al Thiel, Appellees.

No. C14-86-753-CV Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 12, 1987.

Rehearing Denied Jan. 7, 1988.

Beatrice Mladenka-Fowler, Houston, for appellant.

Richard Warren Mithoff, Craig Smyser, Houston, for appellees.

Before JUNELL, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Lynn Brasher, plaintiff below, appeals the granting of separate motions for summary judgment brought by the two defendants to his libel suit. The allegedly libelous publications were political pamphlets criticizing Brasher's performance as mayor of the city of South Houston. Walter Carr authored the pamphlets printed at Al Thiel's printing shop. The significant issues on appeal require balancing the appellees' First Amendment rights to free expression of opinion on political issues with appellant's right to seek damages against those who injure his reputation.

On September 27, 1985, appellant filed his original petition alleging that Carr and Thiel published libelous statements in a "series of brightly colored brochures" mailed out to every citizen in the city of South Houston. In a rather rambling manner the petition mentions in particular two brochures, one identified by a publication date of February 1985, and another by its title. Neither appellee filed special exceptions to the petition. Instead, appellee Thiel filed interrogatories asking appellant to "[p]lease state verbatim each and every statement or publication which you contend ... defamed you. Include in your response the date and place of each publication and the name and address of each person to whom the publication was made." At the same time appellee Thiel requested production of "[a] copy of each and every statement in written or other graphic form that you contend libeled or defamed Plaintiff."

Appellant answered the interrogatories by listing seven items. Each item included the approximate publication date, a phrase or sentence in quotation marks, and a statement about how the item was distributed (E.g., "Distributed U.S. bulk rate mail, permit no. 66, paid for by the Elect Thiel campaign--Helen Thiel, Treasurer."). In response to the request for production appellant provided copies of six of the listed items, all brochures or handouts. (The seventh item was a hand-painted sign.) Brasher gave the same answer to substantially similar interrogatories filed by Carr.

In their first motions for summary judgment, appellees treated the phrases in quotation marks in appellant's answers to interrogatories as the only statements at issue. Appellant responded to appellees' motions for summary judgment, and also filed amended answers to both sets of interrogatories stating: "As a supplement to the previous Answer, please find attached hereto as Exhibits 1 through 6 publications containing statements that, when taken as a whole, are alleged by the Plaintiff to be libelous. (These publications were listed in the Plaintiff's Response to Defendant's [Thiel] First Interrogatories and later submitted in response to Defendant's Request for Production.)" (Emphasis added.)

Appellees rewrote their motions for summary judgment urging essentially the same grounds for dismissal.

In the meantime, appellant issued notices of depositions of both defendants and subpoenas duces tecum calling for production of "each and every document ... which would substantiate each factual statement, claim or allegation made" in the brochures listed by appellant in his answers to interrogatories. Both appellees moved the court to quash the subpoenas duces tecum. They urged that it was unfair for appellant to require production of documents substantiating facts stated in the brochures when appellant refused to specify what statements in those brochures he contends were defamatory. Both appellees sought sanctions against appellant for discovery abuse. Appellee Carr filed a separate motion to strike appellant's amended answers to interrogatories with an additional request for sanctions. The court heard these three motions July 21, 1986, (the day of the scheduled depositions). It granted in part the motions to quash, "granted defendants' requests for sanctions," and ordered appellant to pay $500 as "sanctions, fees, and costs" to each defendant.

We note that in appellant's petition he alleges slander (perhaps as to Carr only) and libel, but the legal arguments in the motions for summary judgment and on appeal address only libel, and only in relation to four particular brochures. The summary judgments ordered that appellant take nothing, thus dismissing all claims. (Thiel's appeal brief points out Brasher's failure to raise points of error addressing dismissal of the slander causes of action and argues that any error is now waived.)

Apparently, appellees consider the issues to have been narrowed by their interrogatories asking appellant to list all statements he claims defamed him. We sympathize with appellees' frustration arising from the vagueness of appellant's petition and of his answers to interrogatories. The petition is probably subject to special exceptions because it failed to specifically allege, through innuendo or otherwise, how and in what manner appellant has been defamed by the four brochures and verbal statements. See Langston v. Eagle Publishing Co., 719 S.W.2d 612, 628 (Tex.App.--Waco 1986, writ ref'd n.r.e.). However, we do not equate, as appellees seem to do, ¹ the functions of interrogatories with the functions of special exceptions. In our review we will look at the four brochures "taken as a whole," and evaluate each of the arguments appellees presented to the trial court in support of their motions. At times we will focus attention on particular sentences, phrases or possible innuendo found in one or more of the four brochures at issue. In doing so we are not attempting to isolate for appellant all statements that may be libelous; nor do we mean to limit for appellees the issues to be tried on remand.

"When a trial court enters an order that does not state the grounds upon which it was granted, the party appealing must show that each of the independent arguments alleged in the motions are insufficient to support the order." Netterville v. Interfirst Bank, 718 S.W.2d 921 (Tex.App.--Beaumont 1986, no writ); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Both appellees urged four reasons summary judgment was proper:

1. The statements allegedly made or published do not constitute libel, slander or defamation as a matter of law.

2. The statements are not actionable because they either are opinion or true statements of fact.

3. Plaintiff was a public official, and as a matter of law, no actual malice existed to support recovery for libel, slander or defamation in this case.

4. The publications allegedly made by Defendant Carr are privileged (citing Tex.Prac. & Rem.Code Ann. § 73.002 (Vernon 1986)) and are not grounds for a libel action.

Additionally, appellee Thiel raised in his motion for summary judgment what he calls a privilege of accurate republication and the affirmative defense of limitations regarding the first three brochures. Thiel was served more than one year after the publication date for these three brochures.

The initial inquiry in any libel case is whether the allegedly libelous words are reasonably capable of a defamatory meaning. Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 654 (Tex.1987). In Texas a statement is defamatory if it tends to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt, or ridicule, or financial injury, or to impeach his honesty, integrity, or virtue, or reputation. Tex.Civ.Prac. & Rem.Code Ann. § 73.001 (Vernon 1986).

In his petition appellant alleged that some of the statements in the pamphlets, by innuendo, accuse him of misusing public funds and of corruption and are libelous per se. He further developed this theory in his response to motions for summary judgment. There he argued that certain statements in the four publications amount to accusations of official misconduct, which is both a crime (Tex.Pen.Code Ann. § 39.01 (Vernon Supp.1987)) and grounds for removal from office (Tex.Rev.Civ.Stat. art. 5991 (Vernon 1962)).

Statements that are of such a character as, if true, would subject a public official to removal from office or charge him with a crime are libelous per se. Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499, 503 (1950); Nobles v. Eastland, 678 S.W.2d 253, 255 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.). See also, Houston Press Co. v. Smith, 3 S.W.2d 900, 906 (Tex.Civ.App.--Galveston 1928, writ dism'd) (Statements that impute to a public official dishonesty and corruption, unless proven true, form the basis for an action for libel brought by a public official.) The term "libelous per se" means the words are so obviously hurtful to the person aggrieved by them that they require no proof of their injurious character to make them actionable. Rawlins v. McKee, 327 S.W.2d 633, 635 (Tex.Civ.App.--Texarkana 1959, writ ref'd n.r.e.). Any statement that is by innuendo libelous per se must be capable of a defamatory meaning.

Whether words are capable of the defamatory meaning the plaintiff attributes to them is usually a question of law for the court. Musser, 723 S.W.2d at 655. The court construes the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Id. If the publication contains statements that are ambiguous in their meaning or of doubtful import, then a court cannot say as a matter of law the article is not defamatory. Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729, 730 (Tex.1985); Sellards v. Express-News Corp., 702 S.W.2d 677, 679 (Tex.App.--San Antonio 1985, writ ref'd...